Data: driving the UK’s growth and productivity
The data-driven economy is critical to our future growth and prosperity. With the Data Protection and Digital Information (DPDI) Bill entering Lords Committee Stage shortly, this is our opportunity to keep the UK at the global forefront of digital innovation, regulation, and governance. We believe that the UK public will also benefit from better use of personal data, which will deliver a stronger economy, more efficient and effective public services, and greater innovation in science and technology. The Advertising and Marketing Industry supports this legislation, but there is a real opportunity to make it even better.
Advertising and marketing are important. They play a crucial role in brand competition, drive product innovation and fuel economic growth. Many industries such as the arts, sport and culture depend on it for their revenues and it also funds a diverse and pluralistic media, including a free and open internet, enjoyed by consumers of all ages, including children and young people.
For the advertising and marketing industry data is our lifeblood. Data driven advertising means more relevant and timely ads. Data driven marketing is critical to small and medium sized enterprises (SMEs) and charities who need to create relevance among their customers to drive growth and to sustain it.
Moreover, trust underpins everything we do. Without trust, a brand is nothing but noise. Trust gives consumers the confidence to share their information and that is why the advertising and marketing industry has invested significant sums to comply with the GDPR. We have a significant stake in preserving personal privacy.
The DPDI Bill is, therefore, a welcome addition to the statute book. It maintains our strong data privacy safeguards, preserves EU data adequacy, but crucially it clarifies areas of the data protection law that are ambiguous and updates areas that require modernisation by amending existing legislation rather than by replacing it.
For example, under GDPR there are six available lawful bases for processing data, and no single basis is “better” or more important than the others. The DPDI Bill addresses the overreliance on consent as a legal basis and clarifies that Legitimate Interests is also an equally valid basis for processing. The Bill also makes it easier for charities to contact supporters, by allowing these organisations to use a soft opt-in for email.
Additionally, the Bill recognises scientific research not only as an endeavour carried by academia and in laboratories but one that can be carried out by commercial organisations too. This brings much needed clarity and legal certainty to the market research community. However, it is important that the direction of this provision is not expanded to allow the unauthorised scraping of company data and IP.
Finally, it revises the risk-based framework to recognise that not all cookies and online identifiers are of an intrusive nature. Cookies are unfairly vilified when in fact most have critical functions to a website’s operation, for example saving language preferences, login information and shopping baskets as well as counting visitors to a website.
That said we think there is an opportunity for the House of Lords to improve the DPDI Bill further.
Firstly, by amending the Bill to extend the consent exemption to the use of cookies for audience measurement and ad performance. These are both non-intrusive functional cookies that have specific and narrow purposes. Measuring audiences is so important for the media, who need to know how to improve content and to price advertising effectively. Likewise, ad performance cookies allow publishers to accurately invoice advertisers when a user interacts with an ad on their website.
Secondly, the Bill tries to address the proliferation of cookie banners and consent fatigue. It proposes granting secondary powers for the Secretary of State to legislate for technology which enables users to express their cookie consent preferences through centralised controls – rather than having to deal with a banner on every website. The proposal does not properly consider the risk and impact to digital competition, publishers and the wider online advertising eco-system, or whether such changes would actually benefit consumers. That is why we have been calling for greater safeguards in the exercise of these powers.
Thirdly, there is a real concern about the new powers which allow the Secretary of State to offer exemptions for direct marketing for the purposes of “democratic engagement”. The risk of abuse here is real and could lead to an increase in poor practices, such as political lobbying under the guise of market research.
Finally, we need clarity about the use of the Open Electoral Register for direct marketing. We are all familiar with local councils requesting our information for the electoral register, which can be used by political parties as well as commercial organisations for direct marketing and credit checks. This is permitted in law, and it is generally well-understood that citizens can opt-out of the Open Electoral Register at any time. Unfortunately, the ICO has taken an overly strict interpretation of the law which does not reflect the high degree of transparency that already exists and the disproportionate costs that would be incurred under their interpretation. The ICO’s interpretation has created legal uncertainty which can only be corrected by revision to the current Bill.
We hope that, as Committee Stage progresses, Peers from across all parties can come together to pass the necessary amendments to the Bill to ensure the UK remains at the forefront of the data-driven economy.
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